401k Litigation Update
- Monday, 18 March 2019 10:59
In 2016 and 2017, 107 complaints were filed with the DOL about 401k plans. This is the most since 2008-2009 according to Retirement Study done at Boston College.
Some things are obvious- when markets fall, complaints tend to rise. These complains tend to fall with plans that were not being paid enough attention to typically, and resulted in “hundreds of millions of dollars in settlements…”
Further, the complaints are typically “obvious and preventable. What are the primary complaints:
- Neglecting to have and follow prudent fiduciary policies, procedures and practices.
- Failing to mitigate conflicts of interest
- Offering inappropriate investment choices
- Lacking required transparency
The time to adjust your behavior is before complaints and problems occur, of course. A common theme in the study is that as soon as lawsuits and investigations start, everyone starts getting educated on their fiduciary duties, but thats too late. Also note that these issues are not about investment advice, but about fiduciary processes, so if you have an investment adviser, thats just not enough!
Choosing Funds in your 401(k) Plan
- Sunday, 10 February 2019 07:42
A recent First Circuit Court of Appeals decision puts a special light on the fiduciary standards for selecting, monitoring and changing the investments in your 401k plan. It also supports our ongoing approach to this for our clients. For the full article, click here.
“Moreover, any fiduciary of a plan such as the Plan, in this case, can easily insulate itself by selecting well-established, low-fee and diversified market index funds. And any fiduciary that decides it can find funds that beat the market will be immune to liability unless a district court finds it imprudent in its method of selecting such funds, and finds that a loss occurred as a result. In short, these acts are not matters concerning which ERISA fiduciaries should cry ‘wolf.’”
DOL Reaches Settlement on 401k plans
- Saturday, 17 February 2018 16:11
From Plan Sponsor:
The U.S. Department of Labor (DOL) has entered into a settlement agreement with U.S. Fiduciary Services and three of its subsidiaries that provides for payment of more than $7 million to 42 retirement plans that suffered losses as a result of investments in fictitious loans made by Florida-based First Farmers Financial LLC (FFF).
The agreement and anticipated future payments from a pending receivership estate case involving FFF are expected to compensate the retirement plans fully for approximately $16 million in losses.
FFF created the fictitious loans and forged documents stating that the loans were guaranteed by the U.S. Department of Agriculture. Forty-two retirement plans invested in a fund exposed to the fraudulent FFF loans through subsidiaries of U.S. Fiduciary Services.
The DOL’s Employee Benefits Security Administration (EBSA) conducted investigations of the subsidiaries—Salem Trust Company, Pennant Management Inc., and GreatBanc Trust Company—for potential violations of the Employee Retirement Income Security Act (ERISA) in connection with the plans’ investments in a fund exposed to the fictitious FFF loans.
After its investigations, the DOL entered into the settlement agreement with U.S. Fiduciary Services and the three subsidiaries, resolving its claims of ERISA violations. Representatives of the ERISA-covered retirement plans that are due to receive settlement proceeds were also parties to the settlement agreement.
“Fiduciaries must work solely in the interest of participants and beneficiaries,” says Jeffrey A. Monhart, EBSA Regional Director in Chicago. “The Department of Labor conducts investigations and undertakes enforcement actions to protect Americans’ hard-earned benefits. This settlement restores vital benefits that rightfully belong to employees.”
NYU Participants File Second Excessive Fee Complaint
- Friday, 24 November 2017 08:20
From Plan Sponsor Compliance Section 11/20/17. For the full article, click here.
Participants in the New York University and related plans are making a second attempt to sue fiduciaries for excessive fees.
After a federal district court judge found most claims in an earlier complaint were not plausibly alleged by the plaintiffs, they filed a second complaint in the U.S. District Court for the Southern District of New York. This case was filed against NYU Langone Hospitals, NYU Langone Health Systems, the retirement plan committee, and several named defendants.
As with the first case, which included the university’s Faculty Plan, the participants allege that instead of using the plans’ bargaining power to reduce expenses and exercising independent judgment to determine what investments to include in the plans, the defendants squandered that leverage by allowing the plans’ conflicted third-party service providers—TIAA-CREF and Vanguard—to dictate the plans’ investment lineup, to link its recordkeeping services to the placement of investment products in the plans, and to collect unlimited asset-based compensation from their own proprietary products.
In the new complaint, the plaintiffs attempted to offer more evidence that their claims were plausible.
For example, previously, U.S. District Judge Katherine B. Forrest dismissed all of the plaintiffs’ loyalty claims, finding that the plaintiffs failed to plead sufficient facts to support the loyalty-based claims. “A plaintiff does not adequately plead a claim simply by making a conclusory assertion that a defendant failed to act ‘or the exclusive purpose of’ providing benefits to participants and defraying reasonable administration expenses; instead, to implicate the concept of ‘loyalty,’ a plaintiff must allege plausible facts supporting an inference that the defendant acted for the purpose of providing benefits to itself or someone else,” she wrote in her opinion.